Cousins v. Duprey, 4D19-3602

CourtCourt of Appeal of Florida (US)
Writing for the CourtMAY, J.
PartiesROBERT COUSINS and SCOTT SANKEY, Appellants, v. IVETTE DUPREY, Appellee.
Docket Number4D19-3602
Decision Date21 July 2021



No. 4D19-3602

Florida Court of Appeals, Fourth District

July 21, 2021

Not final until disposition of timely filed motion for rehearing.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; William W. Haury, Jr., Judge; L.T. Case No. CACE11-10187(13).

Dinah S. Stein of Hicks, Porter, Ebenfeld &Stein, P.A., Miami, for appellants.

Dennis Grossman of Law Office of Dennis Grossman, Miami, and Max R. Price of Law Office of Max R. Price, P.A., Miami, for appellee.


Two attorneys appeal a sanctions order entered against them during a medical malpractice trial. They argue the trial court erred in sanctioning them and in determining the amount of the sanction. We agree and reverse.

The underlying case arose from a two-count complaint for medical malpractice.

The plaintiff suffered from Crohn's disease. In 1990, she underwent surgery to remove certain diseased tissue. The defendant doctor first started treating the plaintiff nine years later. In 2007, the plaintiff's gastroenterologist referred her to the doctor to surgically remove a stricture and reconnect the small bowel. In 2008, the doctor performed a laparoscopic small bowel resection.

In the summer of 2009, the plaintiff suffered another flare-up of her Crohn's disease. A colonoscopy revealed inflammation and a protrusion of the small intestine ("prolapsing") at the site of the ileocolonic anastomosis. The prolapse was caused by the stricture at that location that the doctor was supposed to have removed in 2008.

The plaintiff was referred to another physician for a second opinion. She underwent another surgery where the stricture at the ileocolonic anastomosis and two other strictures were removed and reconfigured.

The plaintiff sued the doctor who performed the 2008 surgery and his professional association ("P.A."). She alleged he was negligent in failing to "remove the culprit stricture" at "the site of [the ileocolonic] anastomosis" and failing to inform her "that he did not remove the stricture ...." Count two alleged vicarious liability against the doctor's P.A.

The doctor and his P.A. "specifically" denied the allegations and asserted as an affirmative defense that "the care and treatment rendered by [the defendants] were within the requisite standard of medical practice, and at no time was there any deviation from this standard."


The doctor submitted the following answer to an interrogatory propounded by the plaintiff.

6. Did you perform the surgery on the [p]laintiff specifically treatment of the stricture at the ileocolonic anastomosis, during the surgery on or about January 14, 2009 If so, please describe specifically any and all evidence of this treatment. If not, why not
ANSWER: The [p]laintiff's surgery was performed on January 14, 2008, not 2009. Yes, the stricture at the ileocolonic anastomosis was treated during that procedure. [The doctor] recalls treating that area. In addition, three (3) segments of small intestine were submitted for pathologic review.

Attorney Cousins' name appeared below the signature block but only attorney Sankey's email address was listed. Attorney Sankey later testified that he "more likely than not" assisted the doctor with the interrogatory answers. Attorney Cousins testified he did not recall assisting the doctor.

Attorney Sankey later attended the doctor's deposition. Plaintiff's counsel questioned the doctor regarding the operative report he "dictated" following the surgery.

Q: [L]et me just ask you specifically: Because you're being sued in this matter with the allegation that you did not perform any type of procedure of the stricture that [was] located at the ileocolonic anastomosis; correct?
A: That's what you're suing me for, yes.
. . . .
Q: Okay. Did you ever inspect that particular area during your procedure?
A: Yes.
Q: Okay. And according to your report, what part of the report indicates that you specifically examined the ileocolonic anastomosis?
A: The abdomen was explored. As you and I talked about earlier, when you do an exploration, you examine all the structure [sic] we talked about.
. . . .
Q: So what you meant by "the abdomen was explored," is that you explored anything and everything within the abdomen, and that also happened to include the stricture at the ileocolonic anastomosis?
A: I looked at everything that was diseased, sir, yes.
Q: Okay. And that includes the stricture at the ileocolonic anastomosis?
A: That's all the stricture-all the disease that was there, I looked at and took care of.

The doctor explained that although his operative report did not state that he examined the stricture at the ileocolonic anastomosis, the stricture was encompassed in the "area of disease" mentioned in the report.

A: The area of disease that we saw, that I saw during the procedure, is the area I took out.
Q: Okay. Doctor, the part that you took out, did it include the ileocolonic anastomosis and the stricture that was located in that area?
A: I took out all the areas of stricture that we could see.
. . . .
A: I took out all the strictured areas.
Q: Is that a yes, then, to my question?
A: Everything that looked like disease, I took it out.
Q: Doctor, did you remove the stricture at the ileocolonic anastomosis, yes or no?
A: I believe I did.
Q: You believe you did?
A: I believe I did. I took out all the disease.
Q: What makes you believe you did, as opposed to maybe you didn't? Where does this belief come from?
. . . .
A: All the area that was diseased, I took out.
. . . .
A: I removed all the disease we saw.
Q: Is the answer to my question yes?
A: I took out all the disease I saw.
Q: Doctor, is the answer to my question yes? Because I can have [the court reporter] read it back two times or twelve times, but I need an answer to the question.
A: I don't have to have it repeated, and I'm trying to answer the best I can.
Q: Doctor, I don't want to know about all the disease that you took out. I want to know specifically, because you would agree with me that there was disease, there was [a] stricture at the ileocolonic anastomosis, you don't dispute that, do you?
. . . .
A: There was-there was disease at the ileocolonic anastomosis.
Q: And my question is: Did you remove that specific diseased portion of her small bowel and large colon?
A: I believe I did.
Q: You believe you did.
. . . .
Q: [T]he thing you're getting sued upon in this case, is that you didn't remove this stricture at the ileocolonic anastomosis, you claim that you did; correct?
A: Yes.
. . . .
Q: Okay. Any particular reason why you would not note in your surgical report your actual surgical removal of this stricture?
. . . .
A: Because I removed all of it-I removed all of it, and all the disease in a particular area.

At a subsequent deposition, the doctor's standard of care expert testified the doctor did not remove any stricture at the ileocolonic anastomosis. The doctor was "mistaken" at his deposition. Based on the records, the expert testified the doctor examined the ileocolonic anastomosis but, as part of his surgical decision-making process, did not deem it to have a clinically significant stricture requiring removal. The doctor's damage and causation expert and the plaintiff's expert also agreed the doctor did not remove the stricture at the ileocolonic anastomosis.

The Trial

In opening statement, attorney Cousins stated the doctor would tell the jury he did not remove the stricture at the ileocolonic anastomosis "because he made a surgical decision that he removed all the diseased areas that he saw and visualized" and "that was his medical judgment at the time." The plaintiff objected and argued the doctor's new "medical judgment" defense was a "surprise" and contrary to his deposition testimony. The plaintiff requested "[i]n a sense like a motion in limine" that the doctor be prohibited from introducing a new theory that he made a judgment call not to remove the ileocolonic anastomosis stricture.

Attorney Cousins responded the doctor "said a lot of different things in his deposition" because he "was being harangued to the point where I'm convinced [he] would have said anything." The parties were "splitting hairs" because "everything is a judgment call" and the plaintiff never asked him whether he exercised his judgment in making his decision during the surgery. Attorney Cousins suggested that he would instruct the doctor not to use the term "judgment call" in his testimony, but that the "clear inference from [the deposition testimony] is if he didn't think it was diseased, he didn't remove it."

The trial court read through the doctor's deposition testimony. The following discussion took place.

Defense Counsel: There is no dispute that [the doctor] did not remove the anastomosis.
Court: What about that portion that I have been looking at in his deposition. . . .
Defense Counsel: Entering the fourth hour of the deposition after being repeatedly questioned, repetitive questions from plaintiff's counsel, that's what he said, Judge. But we know that's simply an inaccurate statement. He did not do it.
Court: Then do I have an errata on this?
Defense Counsel: There was no errata filed, no, sir. I can't now have him get on the stand, Judge, and say something that the doctor knows simply to be inaccurate and factually wrong.
Court: But there's been no effort to fix the depo up to this point.
Defense Counsel: There has not. But our expert clarified that, so it's certainly no surprise what the issue is going to be, Judge.


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